From the Reference Desk: Public Participation in Constitution Drafting

By Amy Flick

A request came through the library’s Student Research Consultation Request form, asking for help finding national constitutions that meet the human rights requirement of public participation, as well as the primary documents with the background or legislative history on the drafting process.

Misunderstanding the question, I prepared a quick list of my standard sources for searching national constitutions: the Constitute Project, and the databases for Hein Online’s World Constitutions Illustrated, Oxford Constitutions of the World, and the Max Planck Encyclopedia of Comparative Constitutional Law.

sr107-democratic-constitution-making-coverWhen the student arrived, I found that these weren’t the resources the student needed. She wanted examples of national constitutions whose drafting processes involved public participation. Searching within constitutions got us constitutional provisions for referenda and amendments, but not the drafting of the constitutions themselves.

I mapped out what I thought would be our four steps: see if there are any books or articles specifically on public participation in constitution drafting, find more general secondary sources on constitution drafting requirements, find specific constitutions that meet the requirements, and then find the documents related to those constitutions.

That was not the route we took either. As it turns out, there has been much written about public participation in constitution drafting. And many of those resources include multiple specific examples of national constitutions, complete with document citations.

We started with law review articles in Hein Online. “Constitution making” and “constitution building” worked better as search terms than “constitution drafting,” and not all articles that mentioned “public participation” provided on good examples. We refined by topic to “comparative law,” since some of our original results were not on foreign law. Most were on specific countries, including Iceland’s efforts to crowdsource a constitution. We did find some that compared the process in different countries, including:

  • David Landau, Constitution-Making Gone Wrong, 64 Ala. L. Rev. 923, 980 (2013)
  • Abrak Saati, Constitution-Building Bodies and the Sequencing of Public Participation: A Comparison of Seven Empirical Cases, 10 J. Pol. & L. 13, 25 (2017)

Our catalog had some good print resources that compared the drafting processes in multiple countries, and these included discussions of public participation, the issues with constitution drafting, and a lot of citations to other books and articles. Two of the relevant books in our collection are:

  • Tania Abbiate, Markus Böckenförde & Veronica Federico, Public Participation in African Constitutionalism (2018)
  • Framing the State in Times of Transition: Case Studies in Constitution Making (Laurel E. Miller ed., 2010)

The Max Planck Encyclopedia of Comparative Constitutional Law was helpful as well. There was an entry by Joel I. Colón-Rios on Drafting of Constitutions, and it included a bibliography, plus a few document citations.

We tried a Google search for some of the cited documents, and we expanded from there to a more general search for “constitution drafting public participation.” We found several helpful articles and documents that way. I wasn’t sure how authoritative some of our results were, but they included many examples of constitution building to work from. Our better finds included:

Having found all this, we had plenty of examples for the student to look at. She planned to read further to focus on the better examples of public participation in drafting national constitutions. With specific examples in mind, I suggested more resources for books and articles.

  • vLex Global has books on the constitutions of the Latin American countries, including Ecuador
  • Index to Foreign Legal Periodicals on Hein Online
  • Emory’s library catalog has books on South Africa’s constitution drafting process
  • Oxford Constitutions of the World has constitutional overviews with discussion of the constitution drafting process, as well as bibliographies
  • Hein Online World Constitutions has scholarly articles on the constitutional history of many constitutions, most of them available on Hein Online

Finding the primary documents on the drafting process was more difficult. The secondary sources we found included discussions of the drafting process for many constitutions, and the secondary sources may be the best, and most available, sources for the student to cite. Although some of the books and articles included URLs for constitutional assemblies and other government sources, few of the URLs or links still worked. WorldCat had a few entries for reports and working papers from constitutional conferences and assemblies, but these could be more difficult to get through interlibrary loan, and would amount to a great deal of material to read through without specific page or date citations.  Where the secondary sources included citations to Official Gazettes, sources for those include:

For this student’s paper on public participation in the drafting of national constitutions, I recommended that the student focus on a few of the best examples. She is looking at Iceland and South Africa, but she may add one or two additional countries. This was a good project for letting secondary sources do a lot of the work of pointing out the best examples and providing citations, as well as including scholarly analysis. Finding the primary documents might be possible, but the student should let the secondary sources narrow down where to look.

 

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